Matthew Purushotham
Fri., July 12, 2024
On June 24, 2024, the United States Supreme Court agreed to review the claims of a Coast Guard reservist seeking differential pay to make up the difference between his civilian employee pay and the lower pay he received while called up to Coast Guard service. In Feliciano v. Department of Transportation, U.S. No. 23-861, the plaintiff alleges that he was entitled to differential pay when he was called to active duty from his federal job as an air traffic controller with the Federal Aviation Administration (FAA).
Mr. Feliciano’s petition seeks review of the 2023 decision by the U.S. Circuit Court for the Federal Circuit. That decision concluded that the statute providing for differential pay (5 U.S.C. § 5538) only applies to employees activated in support of Department of Defense contingency operations. According to the Court, because Mr. Feliciano was called up pursuant to a different statute, he was not eligible for differential pay. Mr. Feliciano argues that he should have been eligible for differential pay under the statute’s catch-all provision because he served while a national emergency was ongoing. The catch-all provision provides for differential pay for employees performing active duty pursuant to “any other provision of law during a war or national emergency declared by the President or Congress.”
The Department of Transportation, the parent Department of the FAA, argued that the Court should decline to hear the case because the Federal Circuit ruled correctly, there was no circuit split to resolve, Mr. Feliciano’s petition attempted to raise issues he failed to raise in the lower court, and Mr. Feliciano had failed to properly request differential pay.
The Supreme Court’s decision in this case could have major implications for whether hundreds of thousands of federal civilian employees and reservists will receive differential pay for their periods of military service.
MSE has handled numerous cases involving federal employee pay, including, recovering hazardous duty pay, night shift differential, and miscalculation of federal employees’ regular rates.
If you are concerned that your federal employer has not paid you properly, contact us at info@mselaborlaw.com.
